David Adelstein | Florida Construction Legal Updates
Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions. Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff. No duty, no negligence claim.
What if a defendant’s duty was delegated to, say, an independent contractor?
[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.
Garcia, supra, (internal citations omitted).
In Garcia, a supermarket hired a company to provide floor cleaning and janitorial services. The company subcontracted the work to an independent contractor. The plaintiff, an employee of the supermarket, fell at the supermarket and sued the cleaning company in negligence claiming the cleaning company “breached its duty of care to warn [the supermaket’s] employees and invitees of the unreasonably slippery floors that caused here injuries.” Garcia, supra. The cleaning company moved for summary judgment claiming it is not liable for the acts of its independent contractor. Thus, the fundamental question is whether the duty of care of the cleaning company was a nondelegable duty that could not be transferred to an independent contractor.
The trial court found the duty of care was NOT a nondelegable duty meaning it could be transferred to the independent contractor. In this case, the cleaning company could not be liable in negligence because it owed no duty to the plaintiff (as that duty was transferred). The First District Court of Appeal affirmed, “[W]e hold that [the cleaning company’s] contract with [the supermarket] did not create a nondelegable duty on [the cleaning company’s] part to [the plaintiff], a non-party to the contract. As such, the trial court properly granted summary judgment as to this issue.”
In affirming, the First District relied on the Third District Court of Appeal’s opinion in Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993), which stands for the proposition that the “‘mere existence of a contract does not create vicarious liability as to third persons for the negligence acts of the independent contractor.’” Garcia, supra, quoting Carrasquillo. In other words, the contract, in of itself, does not create a nondelegable duty of care to third persons not a party to the contract.
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